Taylor v. Equifax Information Services, LLC
Filing
26
ORDER granting in part with respect to Plaintiff's claims arising under 15 U.S.C. §§ 1681a (f), 1681 a (d)(1), and 1681s-2 (a), and denying in part with regard to Plaintiff's claims arising under 15 U.S.C. § 1681-2 (b) as Plaintiff adequately pled a claim alleging that GPC failed to investigate the dispute regarding her purported outstanding balance of $1,995.00 re Defendant's 13 Motion to Dismiss. Signed by Chief Judge Lisa G. Wood on 2/16/2016. (ca)
CYNTHIA N. TAYLOR,
Plaintiff,
CV 215-006
V.
GEORGIA POWER COMPANY,
Defendant.
ORDER
Plaintiff Cynthia Taylor ("Plaintiff") filed suit against
Defendant Georgia Power Company ("GPC") seeking actual and
punitive damages, in addition to attorney's fees, for GPC's
alleged violations of the Pair Credit Reporting Act ("FCRA")
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15 U.S.C. §§ 1681-(x). Specifically, Plaintiff alleges that GPC
erroneously informed credit reporting agencies, such as Equifax
Information Services, LLC ("Equifax"), that she owed an
outstanding balance of $1,995.00 on an account for which she is
not liable. Plaintiff alleges that she suffered harm as a
result of the inclusion of that erroneous account on her credit
report.
In response to Plaintiff's claims, GPC filed a Motion to
Dismiss (Dkt. No. 13), arguing that Plaintiff's Complaint should
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be dismissed because: (1) CPC does not satisfy the definition of
a 'consumer reporting agency' pursuant to § 1681a(f) of the
FCRA; (2) GPC is not a user of consumer reports pursuant to §
1681a(d) (1) of the ECRA; and (3) Plaintiff failed to allege
facts supporting a claim that GPC did not adequately investigate
her claims, pursuant to § 1681s-2 of the FCRA. Dkt. No. 13, pp.
6 - 11. The Court GRANTS in part and DENIES in part GPC's Notion
to Dismiss (Dkt. No. 13) for the reasons set forth below.
FACTUAL BACKGROUND
The following facts are taken solely from Plaintiff's
Amended Complaint. Dkt. No. 11 ("Compl.") . GPO is a
corporation located in Glynn County, Georgia. Id. at ¶ 11. GPC
avers that Plaintiff failed to pay $1,995.00 on a GPC account
for which she is liable. Id. at ¶ 13. When Plaintiff failed to
pay the balance on the account, GPC reported the delinquent
account information, as is its practice, to Equifax. Id. at 191
12, 14. Equifax included the delinquent account information on
Plaintiff's credit report and then "reported that information to
others." Id. The inclusion of this erroneous outstanding debt
on Plaintiff's credit report caused her harm, including "being
required to pay higher interest rates, and being unable to
obtain credit." Id. at ¶ 16.
Plaintiff contacted Equifax to dispute the inclusion of the
delinquent GPC account on her credit report. Id. at ¶ 17.
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Plaintiff explained to Equifax that she "did not owe the
aforesaid GPO account, and she demanded that Equifax investigate
the GPO account and remove said account from [her] credit file."
Id. In response to Plaintiff's allegations, Equifax contacted
GPO about the outstanding account, only to have GPO respond that
with regard to that account, Plaintiff had an outstanding
balance of $1,995.00. Id. at ¶ 18. Equifax then reported the
outstanding balance of $1,995.00 as valid on Plaintiff's credit
report. Id. at ¶ 19.
PROCEDURAL BACKGROUND
Plaintiff initially filed suit against Equifax in the
Magistrate Court of Glynn County. Dkt. No. 1. Equifax then
filed a timely Notice of Removal on January 7, 2015. Id.
Shortly thereafter, Plaintiff filed a Motion for Leave to Add a
Party Defendant, which the Court granted on June 22, 2015. Dkt.
Nos. 9, 10. Plaintiff proceeded to both add GPO as a party and
file an Amended Complaint on June 26, 2015. Dkt. No. 11. On
July 30, 2015, GPO filed a Motion to Dismiss (Dkt. No. 13),
which the parties fully briefed. Dkt. Nos. 15, 17. Plaintiff
filed a Motion to Dismiss Equifax (Dkt. No. 21) on December 10,
2015, which this Court granted on December 11, 2015. Dkt. No.
23. GPO is the only remaining defendant in this matter, and its
Motion to Dismiss is now ripe for review. For the reasons set
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forth below, the Court GRANTS in part and DENIES in part
Defendant's Notion to Dismiss (Dkt. No. 13).
When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6), a district court must accept as true the facts that
are set forth in the complaint and draw all reasonable
inferences in the plaintiff's favor. Randall v. Scott, 610 F.3d
701, 705 (11th Cir. 2010) . Although a complaint need not
contain detailed factual allegations, it must contain sufficient
factual material "to raise a right to relief above the
speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) . At a minimum, a complaint should "contain either
direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable legal
theory." Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d
1276, 1282-83 (11th Cir. 2007) (per curiam) (quoting Roe v.
Aware woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.
2001)
DISCUSSION
The FCRA was enacted "to require that consumer reporting
agencies adopt reasonable procedures for meeting the needs of
commerce for consumer credit . . . in a manner which is fair and
equitable to the consumer, with regard to the confidentiality,
accuracy, relevancy, and proper utilization of such
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information." 15 U.S.C. § 1681(b). The FCRA places specific
obligations on three types of entities: (1) consumer reporting
agencies; (2) users of consumer reports; and (3) furnishers of
information to consumer reporting agencies. 15 U.S.C. §§ 1681b,
1681m, and 1681s-2. Given that Plaintiff's complaint does not
specifically identify which section of the ECRA is applicable to
her claims, the court will address Plaintiff's complaint
pursuant to the obligations placed on each of the three entities
targeted by the FcRA.
I. Consumer Reporting Agencies
GPC argues that it does not satisfy the definition of a
"consumer reporting agency" and thus any claims arising under
this definition of the FCRA fail. Dkt. No. 13, p. 6. A
consumer reporting agency, under the FCRA is defined as:
any person which, for monetary fees, dues,
or on a cooperative nonprofit basis,
regularly engages in whole or in part in the
practice of assembling or evaluating
consumer credit information or other
information on consumers for the purpose of
furnishing consumer reports to third
parties, and which uses any means or
facility of interstate commerce for the
purpose of preparing or furnishing consumer
reports.
15 U.S.C. § 1681a(f). While civil liability may be imposed on
consumer reporting agencies that willfully or negligently
violate the FcRA, see 15 U.
s.c.
§§ 1681m and 1681o; chipka v.
Bank of America, 355 F. A'ppx 380, 383 (11th cir. 2009), the
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definition expressly excludes those "report[s] containing
information solely as to transactions or experiences between the
consumer and the person making the report." 15 U.S.C. §
1681a(d) (2) (A) (i).
Here, the facts as pleaded simply do not support this kind
of claim under the FcRA. Indeed, there are no allegations in
the complaint that GPC qualifies as a consumer reporting agency,
much less that GPC willfully or negligently violated the terms
of the FCRA. See generally Compi. Plaintiff's complaint only
alleges that GPC disseminated false information regarding the
account to a credit reporting agency. compi., ¶I 17-19.
However, that kind of dissemination, which documents
transactions between a consumer and a business, is expressly
precluded from coverage pursuant to section 1681a(d) (2) (A) (i)
Since the facts as pleaded do not support a claim that GPc
qualifies as a consumer reporting agency, any claim under 15
U.S.C. § 1681a(f) is hereby DISMISSED.
II. Users of Consumer Reports
GPC argues that it is not a "user of consumer reports" as
defined under the FCRA. Dkt. No. 13, pp. 6-7. A consumer
report is defined as:
any written, oral, or other communication of
any information by a consumer reporting
agency bearing on a consumer's credit
worthiness, credit standing, credit
capacity,
character,
general reputation,
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personal characteristics, or mode of living
which is used or expected to be used or
collected in whole or in part for the
purpose of serving as a factor in
establishing the consumer's eligibility for—
(A) credit or insurance to be used primarily
for personal, family or household purposes;
(B) employment purposes; or (C) any purpose
authorized under section 1681b of this
title.
15 U.S.C. §§ 1681a(d) (1) and (d) (1) (A)-(c) .
Here, there are no
allegations that GPc used a consumer credit report for anything.
Similarly, there are no allegations that GPC ever collected
information regarding Plaintiff for the purposes of determining
her eligibility for lines of credit, for employment purposes, or
for any other covered purpose under § 1681b. Given the facts as
alleged, it is apparent that the "using consumer reports" prong
of the FCRA analysis is simply inapplicable to the instant
claim.
III. Furnishers of Information to Consumer Reporting Agencies
GPC argues that it cannot be held liable pursuant to 15
U.S.C. § 1681s-2(b) because Plaintiff failed to state facts
supporting a claim that GPC did not investigate her allegations
sufficiently. Dkt. No. 13, pp. 7-11. The FCRA imposes two
duties on a furnisher of credit information: (1) a furnisher
must submit accurate information to credit reporting agencies,
15 U.S.C. § 1681s-2(a); and (2) must investigate and respond
promptly to any notice of a consumer dispute regarding such
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information, id. at § 1681s-2(b). See Green v. RBS Nat'l Bank,
288 F. A'ppx 641, 642 (11th Cir. 2008) (per curiam) (citing 15
U.S.C. §§ 1681a(c), (f), 1681s-2(a)). The FCRA does not provide
a private right of action when a furnisher submits false
information to a credit reporting agency in violation of section
1681-2(a). Id. at 642& n.2 ("Enforcement of this provision is
limited to federal agencies, federal officials, and state
officials."
(citing 15 U.S.C. §§ 1681s-2(c) to (d),
1681s (c) (1) (B))) . By contrast, a private right of action exists
when a furnisher violates section 1681s-2(b), "but only if the
furnisher received notice of the consumer's dispute from a
consumer reporting agency." Id. at 642 (citing 15 U.S.C. §
1681s-2 (b) (1))
Here, it appears that Plaintiff attempts to state a claim
under both sections 1681s-2(a) and (b). Insofar as Plaintiff
alleges that GPO reported false information to Equifax, Compl.,
¶I 17-19, Plaintiff's FCRA claim is based on violations of
section 1681s-2 (a) . Because a violation of section 1681s-2(a)
is not subject to a private right of action, the Court DISMISSES
Plaintiff's FCRA claim under that section.
To the extent that Plaintiff's factual allegations pertain
to her unsuccessful attempts to resolve the alleged problem with
GPO, Ccmpl., 191 18-19, Plaintiff appears to base her FORA claim
on a failure to investigate and respond, in violation of section
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1681s-2(b). A furnisher of information, however, is only liable
for a failure to investigate and respond after receiving notice
of a consumer dispute from a consumer reporting agency, not from
the consumer. See § 1681s-2 (b) (1); Green, 288 F. A'ppx at 642,
see also § 1681i (setting forth a dispute procedure); Eddins v.
Cenlar FSB, 964 F. Supp. 2d 843, 848 (W.D. Ky. 2013) ("Under the
statutory language, notification from a consumer is not enough."
(citing Stafford v. Cross Country Bank, 262 F. Supp. 2d 776, 785
(W.D. Ky. 2003))).
Notice from a credit reporting agency thus constitutes a
necessary element of a claim against a furnisher under section
1681s-2(b) . Schleuter v. BellSouth Telecomms., 770 F. Supp. 2d
1204, 1208 (N.D. Ala. 2010) (citing Rivell v. Private Health
Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008)).
For a
plaintiff to prevail under section 1681s-2(b), the plaintiff
must:
allege and establish that he notified a
consumer reporting agency that he disputed
the completeness or accuracy of information
in his credit report that was furnished by
defendant, the credit reporting agency gave
notice of plaintiff's dispute to defendant
as a furnisher, and defendant did any one of
the following: (1) failed to conduct a
reasonable investigation of the identified
dispute(s); (2) failed to review all
relevant information provided by the credit
reporting agency; (3) failed to report the
results of its investigation to the credit
reporting agency; or (4) if an item of
information disputed by plaintiff was found
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to be inaccurate, incomplete, or it could
not be verified after any reinvestigation,
failed to modify, delete, or permanently
block the reporting of that item of
information.
Ware v. Bank of America Corp., 9 F. Supp. 3d 1329, 1338 (N.D.
Ga. 2014) (citing Howard v. DirecTV Group, Inc., No. CV 109-156,
2012 WL 1850922, at *4 (S.D. Ga. May 21, 2012) (citing 15 U.S.C.
§ 1681s-2(b))).
Here, the Court accepts as true for the purposes of this
motion the following allegations: (1) that GPC submitted false
information to Equifax; (2) that Plaintiff contacted GPC
regarding the inaccuracies; (3) that Equifax contacted GPC
regarding the disputed debt; (4) that GPC "responded that the
Plaintiff did owe the subject account"; and (5) that GPC failed
to correct the erroneous account information. Compi., ¶I 16-19.
Plaintiff sufficiently set forth a claim for relief under
section l68ls-2 (b) . To satisfy pleading standards, a court must
draw all reasonable inferences in favor of the plaintiff. See
Randall, 610 F.3d at 705. In response to Equifax's notice of a
dispute, GPC simply "responded" that the outstanding balance on
the account was correct. Compl., ¶ 18. An inference can be
drawn from this statement that GPC failed to properly
investigate Plaintiff's claim. Carlisle v. Nat'l Commercial
Servs., Inc., No. 1:14-CV-515-TWT, at *14 (N.D. Ga. July 7,
2015) (explaining that merely confirming that the customer owed
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the disputed claim did not amount to a reasonable investigation
because the "pertinent question is whether a furnisher's
investigation procedures were reasonable in light of what the
credit reporting agencies told it about the nature of the
dispute.") . Plaintiff's claim is sufficient under Fed. R. Oiv.
P. 12(b) (6). Accordingly, GPO's Motion to Dismiss pursuant to
15 U.S.C. § 1681s-2(b) is DENIED as Plaintiff adequately set
forth a claim under this section.
CONCLUSION
Defendant's Motion to Dismiss (Dkt. No. 13) is GRANTED with
respect to Plaintiff's claims arising under 15 U.S.C. §
1681a(f), 1681a(d)(1), and 1681s-2(a). Defendant's Motion to
Dismiss (Dkt. No 13) is DENIED with regard to Plaintiff's claims
arising under 15 U.S.C. § 1681s-2(b) as Plaintiff adequately
pled a claim alleging that GPO failed to investigate the dispute
regarding her purported outstanding balance of $1,995.00.
SO ORDERED,
this 16TH day of February, 2016.
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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